Opinion filed October 15, 2015

In The

Eleventh Court of Appeals 

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No. 11-15-00169-CV

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IN RE THE STATE OF TEXAS EX REL. MICHAEL MUNK

Original Mandamus/Prohibition Proceeding

O P I N I O N

This is an original mandamus/prohibition proceeding filed by Relator, the 

State of Texas, acting by and through the District Attorney for the 106th Judicial 

District, Michael Munk. Relator contends that Respondent, the Honorable Carter T. 

Schildknecht, Judge of the 106th District Court of Dawson County, Texas, entered 

a void order on July 22, 2015, requiring Relator to provide discovery pursuant to 

Texas Code of Criminal Procedure Article 39.14(a). TEX. CODE CRIM. PROC. ANN.

art. 39.14(a) (West Supp. 2014). Relator asserts that the order was void because 

Respondent did not have jurisdiction to enter it. Relator seeks a “writ of mandamus 

ordering the [trial] court to reverse its order of July 22, 2015, which requires the 

State to produce discovery for an unindicted case” and a “writ of prohibition 
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preventing the court from requiring that the State produce discovery for an 

unindicted case.” Additionally, the State requested an emergency temporary stay of 

the proceedings. We granted the State’s requested emergency stay in a separate 

written order entered on July 28, 2015. For the reasons expressed herein, we 

conditionally grant the petition for writ of mandamus, and we deny the petition for 

a writ of prohibition.

Background Facts

The real party in interest, Dimas Gonzalez, was arrested on May 17, 2015, for 

murder pursuant to an arrest warrant. Justice of the Peace Denise P. Dyess provided 

Gonzalez with the requisite magistrate warnings on May 18, 2015. See CRIM. PROC.

art. 15.17 (West 2015). Gonzalez filed a “Request for Appointment of Counsel and 

Determination of Indigence” on May 18, 2015, and Respondent entered an “Order 

Appointing Attorney” on May 19, 2015, appointing attorney Arthur Aguilar Jr. as 

Gonzalez’s attorney. Subsequently, attorney Daniel W. Hurley wrote a letter dated 

June 4, 2015, to District Attorney Michael Munk advising Munk that Hurley had 

been retained to represent Gonzalez. Hurley’s letter indicated that it constituted 

Gonzalez’s “formal request for discovery” pursuant to Article 39.14. Hurley’s letter 

concluded with a request that Munk either comply with the request within fifteen 

days or that Munk file a formal motion and request a hearing seeking an extension 

of time for compliance.

Munk did not voluntarily comply with Gonzalez’s request for discovery set 

out in Hurley’s letter of June 4. Gonzalez subsequently filed a “Motion to Compel 

Discovery and to Impose Sanctions for Failure to Abide.” Gonzalez styled the 

caption on this motion as follows: “CAUSE NO. ______________, STATE OF TEXAS V.

DIMAS GONZALEZ, IN THE 106TH DISTRICT COURT OF DAWSON COUNTY, TEXAS.” 

Respondent conducted a hearing on this motion on July 22, 2015. Respondent began 

the hearing with the following announcement: “Court calls the State of Texas versus 
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Dimas Gonzalez. And we are here on the motion, filed on behalf of the defendant, 

to compel discovery and to impose sanctions for failure to abide.” The prosecutor 

that appeared at the hearing informed Respondent at the outset of the hearing that 

the State did not believe that the trial court had jurisdiction to consider Gonzalez’s 

discovery motion because an indictment had not been filed. Respondent responded 

as follows to the prosecutor’s contention: “And the Court is going to go ahead and 

proceed on the case. The Court, respectfully, does not agree with the State. The 

Court does believe it has jurisdiction and is going to proceed.” Respondent entered 

a written order that same day granting Gonzalez’s motion to compel discovery. The 

order required the State to provide Gonzalez with discovery on or before 5:00 p.m. 

on July 30, 2015.

This Court’s Mandamus Jurisdiction

As a threshold issue, Gonzalez argues that we lack jurisdiction to issue a writ 

of mandamus because Respondent was not acting in her capacity as the judge of a 

district court but, rather, in her capacity as a magistrate. Section 22.221 of the Texas 

Government Code defines and limits our mandamus jurisdiction. In re Thompson, 

330 S.W.3d 411, 414 (Tex. App.—Austin 2010, orig. proceeding); see TEX. GOV’T 

CODE ANN. § 22.221 (West 2004). Section 22.221 provides, in pertinent part, as 

follows:

(a) Each court of appeals or a justice of a court of appeals may 

issue a writ of mandamus and all other writs necessary to enforce the 

jurisdiction of the court.

(b) Each court of appeals for a court of appeals district may issue 

all writs of mandamus, agreeable to the principles of law regulating 

those writs, against a:

(1) judge of a district or county court in the court of 

appeals district; or
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(2) judge of a district court who is acting as a 

magistrate at a court of inquiry under Chapter 52, Code of 

Criminal Procedure, in the court of appeals district.

GOV’T § 22.221(a), (b). We focus our attention on subsection (b) of Section 22.221 

because there is no assertion that the issuance of the mandamus sought by Relator is 

necessary to enforce the jurisdiction of this court.

The leading case on the application of subsection (b) is State ex rel. Holmes v. 

Salinas, 774 S.W.2d 421 (Tex. App.—Houston [14th Dist.] 1989, orig. proceeding)

(Holmes I). The Fourteenth Court of Appeals concluded that, under subsection (b),

an intermediate court of appeals only has mandamus jurisdiction over district and 

county judges when they are functioning in that capacity. Holmes I, 774 S.W.2d at 

422–23. Conversely, an intermediate court of appeals does not have mandamus 

jurisdiction over district and county judges when they are functioning as 

magistrates.1Id. The court determined that it did not have jurisdiction to issue a 

writ of mandamus against the respondent district judge in Holmes I because he was 

functioning as a magistrate when he entered the orders that were challenged.2 Id.

The respondent district judge in Holmes I issued pre-indictment orders that 

restrained the Harris County district attorney from “making any effort to obtain from 

the Grand Jury an indictment prior to the completion of an examining trial” in cases 

involving two potential defendants. Id. at 422. The district attorney conceded that

 

1Subsection (b)(2) pertaining to district judges “acting as a magistrate at a court of inquiry” was 

added after Holmes I was decided. It has no application to this proceeding because there is no assertion 

that Respondent was acting as a magistrate of a court of inquiry. 

2By contrast, the mandamus jurisdiction of the Texas Court of Criminal Appeals is not as restricted 

as our mandamus jurisdiction, as evidenced by the fact that the relator in Holmes I subsequently obtained

mandamus relief from the court in State ex rel. Holmes v. Salinas, 784 S.W.2d 421 (Tex. Crim. App. 1990)

(orig. proceeding) (Holmes II), for the same orders challenged in Holmes I. See State ex rel. Millsap v. 

Lozano, 692 S.W.2d 470, 481 (Tex. Crim. App. 1985) (orig. proceeding) (Pursuant to Article V, section 5 

of the Texas constitution, the Texas Court of Criminal Appeals has jurisdiction to issue writs of mandamus 

“in all criminal matters.”).
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the respondent district judge was “sitting as a magistrate” when he entered the 

challenged orders. Id. In reaching its holding, the Fourteenth Court of Appeals

noted that district judges also function as a magistrate at times at the pretrial stage 

of a criminal case pursuant to Article 2.09 of the Texas Code of Criminal Procedure. 

Id. (citing CRIM. PROC. art. 2.09). The court further noted that jurisdiction attaches 

in the district court only after the grand jury returns an indictment. Id. (citing 

Garcia v. Dial, 596 S.W.2d 524, 527 (Tex. Crim. App. [Panel Op.] 1980) (orig. 

proceeding)).

In reliance upon Holmes I, Gonzalez contends that, when a district judge acts 

before issuance of an indictment, the judge is acting under his or her authority as a 

magistrate. We disagree with Gonzalez’s contention and reliance on Holmes I. As 

noted previously, the respondent district judge in Holmes I issued the challenged 

orders in connection with orders pertaining to an examining trial. The act of holding 

an examining trial is a function performed by a magistrate. CRIM. PROC. art. 16.01; 

see Holmes II, 784 S.W.2d at 424. “The duties and authority attendant to the role of 

magistrate ‘within the meaning of’ the Code of Criminal Procedure are clearly set 

out in Arts. 2.10 and 2.11.” Holmes II, 784 S.W.2d at 424 (citing CRIM. PROC. arts. 

2.10, 2.11 (West 2005)). A discovery order issued under the auspices of 

Article 39.14(a) is not a function associated with the role of a magistrate as set out 

in Articles 2.10 and 2.11.

Gonzalez contends that Respondent’s issuance of the discovery order was 

akin to the act of a magistrate conducting an examining trial because an examining 

trial provides a “crude means for basic pre-indictment discovery.” See id. (noting

that an examining trial provided for in Article 16.01 “may be a practical tool for 

discovery by the defendant” (quoting Harris v. State, 457 S.W.2d 903, 907 (Tex.
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Crim. App. 1970))). However, Respondent was not conducting an examining trial 

at the time the discovery order was issued. In this regard:

The traditional and statutory purposes of an examining trial are 

(1) to determine whether there exists sufficient evidence of guilt to hold 

a suspect accused of criminal conduct; (2) to determine whether bail 

should be allowed and if so, the amount of bail; and (3) to perpetuate 

the testimony of witnesses, including any voluntary statement the 

suspect may wish to make.

Id. (citing Harris, 457 S.W.2d at 907 n.1). The only matter considered by 

Respondent at the hearing was Gonzalez’s motion for discovery under 

Article 39.14(a). We conclude that Respondent was functioning in her capacity as 

the district judge of the 106th District Court at the time she considered Gonzalez’s 

discovery motion. Accordingly, we have mandamus jurisdiction under 

Section 22.221(b) to review her actions.

Writ of Mandamus

Mandamus is appropriate in a criminal proceeding when the relator 

establishes (1) “that he has no adequate remedy at law to redress the harm that he 

alleges will ensue” and (2) “that the act he seeks to compel or prohibit does not 

involve a discretionary or judicial decision.” Simon v. Levario, 306 S.W.3d 318, 

320 (Tex. Crim. App. 2009) (orig. proceeding); see State ex rel. Hill v. Ct. of Appeals 

for Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001) (orig. proceeding). 

Relator does not have an adequate remedy at law because the State does not have 

the right to appeal from the order entered by the trial court. CRIM. PROC. art. 44.01; 

see Millsap, 692 S.W.2d at 481. Accordingly, the first prong of the two-part test is 

established.

With respect to the second prong, “[f]or a court to act, it must have jurisdiction 

to do so. This is fundamental.” Millsap, 692 S.W.2d at 482 (quoting State v. Klein, 

224 S.W.2d 250, 252 (Tex. Crim. App. 1949)) (internal quotation marks omitted). 
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“Any order entered by a court having no jurisdiction is void.” Id. (citing Ex parte 

Sandoval, 318 S.W.2d 64, 66 (Tex. Crim. App. 1958)). “If the court has no 

jurisdiction, it should proceed no further with the case other than to dismiss it for 

want of power to hear and determine the controversy. In such a case, any order or 

decree entered, other than one of dismissal is void.” Id. (quoting Hall v. Wilbarger 

Cnty., 37 S.W.2d 1041, 1046 (Tex. Civ. App.—Amarillo 1931), aff’d, 55 S.W.2d 

797 (Tex. Comm’n App. 1932, judgm’t adopted)) (internal quotation marks 

omitted). Accordingly, if Relator is correct in its assertion that Respondent did not 

have jurisdiction to enter the discovery order, it has established the second prong of 

the two-part test and is entitled to mandamus relief to compel vacation of 

Respondent’s discovery order. Id.

This case involves the new discovery procedures that became effective with 

the passage of the Michael Morton Act. See Michael Morton Act, 83d Leg., R.S., 

ch. 49, 2013 Tex. Gen. Laws 106 (codified at CRIM. PROC. art. 39.14); In re State 

ex rel. Munk, 448 S.W.3d 687, 691 (Tex. App.—Eastland 2014, orig. proceeding). 

We direct our attention to subsection (a) of Article 39.14 that provides as follows:

(a) Subject to the restrictions provided by Section 264.408, 

Family Code, and Article 39.15 of this code, as soon as practicable after 

receiving a timely request from the defendant the state shall produce 

and permit the inspection and the electronic duplication, copying, and 

photographing, by or on behalf of the defendant, of any offense reports, 

any designated documents, papers, written or recorded statements of 

the defendant or a witness, including witness statements of law 

enforcement officers but not including the work product of counsel for 

the state in the case and their investigators and their notes or report, or 

any designated books, accounts, letters, photographs, or objects or other 

tangible things not otherwise privileged that constitute or contain 

evidence material to any matter involved in the action and that are in 

the possession, custody, or control of the state or any person under 

contract with the state. The state may provide to the defendant 

electronic duplicates of any documents or other information described 

by this article. The rights granted to the defendant under this article do 
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not extend to written communications between the state and an agent, 

representative, or employee of the state. This article does not authorize 

the removal of the documents, items, or information from the 

possession of the state, and any inspection shall be in the presence of a 

representative of the state.

CRIM. PROC. art. 39.14(a). 

Article 39.14(a) addresses what the State must produce and when the State 

must produce it. However, the statute does not address the manner by which the trial 

court may enforce the mandates of Article 39.14(a) by issuing an order compelling

the State to comply with the statute. Gonzalez contends that the statute permits the 

trial court to issue an order prior to an indictment to compel compliance with the 

statute. We disagree with Gonzalez’s interpretation of the statute.

“[I]t is well settled that a valid indictment, or information if indictment is 

waived, is essential to the district court’s jurisdiction in a criminal case.” Trejo v. 

State, 280 S.W.3d 258, 261 (Tex. Crim. App. 2009) (quoting Garcia, 596 S.W.2d at

527). “The attachment of jurisdiction in the district court conveys upon that court 

the power to determine all essential questions ‘and to do any and all things with 

reference thereto authorized by the Constitution and statutes, or permitted district 

courts under established principles of law.’” Garcia, 596 S.W.2d at 527–28 (quoting 

Cleveland v. Ward, 285 S.W. 1063, 1069 (Tex. 1926)). In the absence of express 

language in Article 39.14(a) authorizing the trial court to issue an order compelling 

the State to produce discovery prior to indictment, we conclude that the statute does 

not alter the well-settled requirement that an indictment is essential to the district 

court’s jurisdiction in a criminal case.

Respondent did not have jurisdiction prior to indictment to issue an order 

compelling Relator to comply with Article 39.14(a). Accordingly, Relator is entitled 

to mandamus relief. We conditionally grant Relator’s petition for writ of mandamus. 

A writ will issue only if Respondent fails to vacate her July 22, 2015 order to produce 
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discovery. Our emergency stay of the enforcement of the “order to produce 

discovery” shall remain in place until Respondent vacates her July 22, 2015 

discovery order.

Writ of Prohibition

Relator also seeks a writ of prohibition to prohibit Respondent from requiring 

the State to provide discovery prior to indictment in future cases. We have 

previously held that the writ of prohibition is a creature of limited purpose that is 

appropriate only after an appellate court’s jurisdiction has been invoked on 

independent grounds and then only in aid of that jurisdiction. Munk, 448 S.W.3d at 

694; see In re Munk, No. 07-14-00308-CV, 2014 WL 4082109, at *4–5 (Tex. 

App.—Amarillo Aug. 15, 2014, orig. proceeding) (mem. op.) (citing Holloway v. 

Fifth Ct. of Appeals, 767 S.W.2d 680, 683 (Tex. 1989) (orig. proceeding)). An 

appellate court does not have jurisdiction, absent actual jurisdiction of a pending 

proceeding, to issue a writ of prohibition requiring that a trial court refrain from 

performing a future act. Munk, 448 S.W.3d at 694; see In re Nguyen, 155 S.W.3d 

191, 194 (Tex. App.—Tyler 2003, orig. proceeding); Lesikar v. Anthony, 750 

S.W.2d 338, 339 (Tex. App.—Houston [1st Dist.] 1988, orig. proceeding).

Relator has not identified a pending proceeding over which this court has 

jurisdiction and by which this court might have jurisdiction to issue a writ of 

prohibition to prohibit a future act by Respondent. Furthermore, we have not found 

such a proceeding. Thus, we have no pending jurisdiction to protect or preserve by 

way of a writ of prohibition. That being the case, we lack jurisdiction to issue a writ 

of prohibition. Accordingly, we deny Relator’s request to issue a writ of prohibition.

This Court’s Ruling

Relator’s petition for writ of mandamus is conditionally granted. The 

Honorable Carter T. Schildknecht is directed to vacate her discovery order of
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July 22, 2015. A writ of mandamus will issue only if Judge Schildknecht fails to act 

by October 30, 2015. Relator’s request for a writ of prohibition is denied.

JOHN M. BAILEY 

JUSTICE

October 15, 2015

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.